Latest trial of Clinton Township woman accused of drowning her grandson comes to an end

By JAMESON COOK

Friday, March 8, 2013

The case against a 63-year-old woman accused of drowning her grandson seemed to turn away from her and toward her adult daughter this week during the fourth trial.

Terry Borgia is charged with felony murder and child abuse in the January 2010 death of DeAngelo Tobia in her bathtub in the Clinton Township apartment she shared with her daughter, Tonina, now 28.

The trial ended Friday with closing arguments in Macomb County Circuit Court in Mount Clemens followed by about 90 minutes of jury deliberations. The jury is scheduled to return to court Monday.

Three prior trials ended in mistrials, although only the last one made it to the jury, which didn't reach a verdict last December.

The defense's case received a boost this week when Tonina, who has been on medications for mental issues, failed to show up for her testimony Thursday, and the defense Friday crystallized a key point of its argument by rereading Tonina's prior testimony in which she gave a potentially incriminating statement.

Defense attorney Mark Haddad in closing arguments Friday recited an exchange he had in court with Tonina late last year about her speculation to a police detective that her sister, Vickie, could have killed DeAngelo because while performing cardiopulmonary resuscitation, she said she believed she smelled Vickie's perfume on DeAngelo.

However, Haddad said Tonina erred when she added, "It could have been soap from the luffa," a sponge-like device commonly used in bathtubs.

The luffa was found in Tonina's bathtub in the bathroom attached to her bedroom. The tub was filled with several inches of soapy water because the drain was plugged.

Haddad implied that Tonina could have used the luffa while drowning DeAngelo in either of the bathtubs.

Her motive was, "Maybe she was having some psychotic episode, having irrational jealousy over the kid, or maybe he did something she didn't like ... maybe she was sleepwalking," he said.

That comment, combined with Tonina failing to show up for her testimony, has swayed DeAngelo's parents to believe that Tonina more likely killed their son. Prior to the last trial, they leaned toward Terry Borgia committing murder.

"Now we feel she (Tonina) is more of a suspect ... because she's really feeling guilty and didn't want to be on the stand yesterday," DeAngelo's mother, Amelia "Amy" Alkasmikha, said Friday.

Still, she and her husband, Bashar, are not 100-percent convinced Tonina did it and will accept the jury's verdict for her mother.

"We just want justice for our son," she said.

Bashar Alkasmikha said police should have investigated both Tonina and Terry Borgia the day his son died instead of focusing on Terry.

Haddad argued Friday that his stoic client is covering up and taking the blame for Tonina, her youngest of three daughters.

He noted that during the trial, "She sat there like a lump of mush, not lifting a finger or saying anything to help in her defense. ... She is perfectly happy to fall on the sword for her daughter."

But Cataldo insisted that Borgia cemented her guilt with three consistent statements to two police officers and a fire official that she placed a sleeping, clothed DeAngelo in the bathtub after filling the tub with water.

"This is not a cover-up," he told jurors. "This is not making the ultimate sacrifice for your child. She is here because she murdered DeAngelo Tobia."

Cataldo said he does not have to prove motive. "I can't explain it," he said.

Cataldo emphasized Tonina is not on trial.

"Your responsibility is for Terry Borgia, even if you think on some level they both did it," he said.

Cataldo committed a potentially costly legal error when in his rebuttle he responded to Haddad's "falling on the sword" remark.

"If that's so, she would've plead," Cataldo said.

That prompted an immediate objection from Haddad who said it violates her right to a fair trial.

Judge Peter J. Maceroni granted Haddad's request for a "curative instruction" in which the jury was told to ignore the remark.

Haddad said if Borgia is convicted, the judge will grant him a mistrial.

Cataldo in his closing pointed to Borgia's failure to call 911 and lack of emotional response to her grandson's death.

While Tonina talked to a 911 dispatcher and performed CPR, Borgia stood by and refused to help. She took time to answer the door when paramedics arrived, he noted.

But Haddad pointed to Tonina's emotional state when she initially dialed 911. "My nephew just drowned in the bathtub," Tonina casually tells the dispatcher, Haddad noted. "Can you send somebody over?

"It's like somebody calling the plumber and asked to come and unplug my tub."

Tonina quickly becomes emotional after the dispatcher excitedly instructs her in the recording played for the nine-man, three-woman jury.

Tonina, among her several speculative statements about who killed DeAngelo, made an incriminating statement when she told a police detective in 2011 that she "must have" killed DeAngelo because her mother is a good person and could not have done it.